--- Magistrate B.R. Wright. Melbourne REASONS FOR DECISION ---

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1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE C RODGER BROOKS Plaintiff v FORD MOTOR COMPANY OF AUSTRALIA LIMITED Defendant --- MAGISTRATE: Magistrate B.R. Wright WHERE HELD: Melbourne DATE OF HEARING: 17 December 2012 DATE OF DECISION: 1 February 2013 CASE MAY BE CITED AS: Brooks v. Ford Motor Company Catchwords: REASONS FOR DECISION --- Workers Compensation Impairment Benefit Binaural Hearing Loss To What Extent Medical Panel Opinion Binding Purported Disaggregation from Medical Panel Opinion Exclusion of Non-Compensable Industrial Deafness - Accident Compensation Act ss 68(4). 88(1) and (3), 90(1) and (2), 91(3AAA), 91(3)(a), and 104B(12)(a). --- APPEARANCES: Counsel For the Plaintiff Mr A Pillay (instructed by Adviceline Injury Lawyers) For the Defendant Mr M Richards (instructed by Herbert Geer) LEGAL TRANSCRIPTS PTY LTD Suite 18, 600 Lonsdale Street, Melbourne Telephone

2 HIS HONOUR: 1 Mr Brooks, now aged 62 years old, was employed as a fitter and turner for almost all of his working life from 1966 to 19 January 2007 when he retired from the employment with the defendant, Ford Motor Company of Australia Limited, a self insurer ( Ford ). He claims benefits under the Accident Compensation Act ( the Act ) relating to industrial deafness. 2 Prior to that, he worked at Ansett Airlines from 1966 to 1976 as an apprentice, and then fully qualified, fitter and turner. During that time, he had a year of National Service from 1972 to After Ansett, he worked from 1977 to 1989 with the Department of Defence, such employment being outside the jurisdiction of Victorian workers compensation legislation, that is the Act and its predecessor, the Workers Compensation Act He worked for six months in 1989 with Federal Airports Corporation as a maintenance worker. He then commenced his last employment with Ford from 8 January I will refer to employment covered by both Acts as "relevant Victorian employment". Obviously, Commonwealth employment and National Service are outside Victorian Act entitlement. 4 He admits being exposed to industrial noise in all of his employments, though I note a history of pre-ford employment refers to "mild" and "moderate" noise with some use of hearing protection. 5 He had a pre-employment audiogram with Ford on 13 October 1989 which apparently showed a 2.8% loss. This was interpreted by two ENT specialists, (Mr Silverstein on behalf of Mr Brooks, and Mr Millar on behalf of Ford), as showing near normal hearing with a high frequency loss in the left ear. 6 He lodged a s.98c hearing loss claim with Ford on 13 March Liability was admitted by Ford. The claim progressed through various stages as set out in the Act. Ultimately (as agreed by the parties), a medical panel issued an Opinion on 13 November 2009 based on an assessed 11% (NAL) permanent 1 DECISION

3 partial binaural hearing loss in accordance with s.91 of the Act. Pursuant to s.91 of the Act, this converted to 11% whole person impairment ( wpi ). 7 On 18 January 2010, Ford made a determination that there was an 8.1% (NAL) compensable hearing loss. As this figure is below the 10% NAL threshold set out in s.91(3)(a) of the Act, it resulted in no compensation being paid for the admitted work related hearing loss. 8 It is Ford s decision determining an 8.1% hearing loss in these circumstances that gives rise to these proceedings. 9 That 8.1% figure was assessed on the basis that Mr Brooks had a total of 27 years relevant Victorian employment, being 10 years at Ansett and 17 years at Ford. He had a total of 41 years employment from 1966 to Ford simply divided the determined total 11% hearing loss (not the 11% wpi figure) by the 41 years figure and then multiplied by the 27 years figure to get a Victorian Act proportion of the total hearing loss figure. It says that this resulted in the final 8.1% figure. 10 However, the above exercise gives an actual figure of 7.24%. This makes no difference to the result as it is still under the s 91(3)(a) threshold for the payment of compensation pursuant to s.98c of the Act as I have set out above. 11 In a letter from the defendant's solicitors to the plaintiff's solicitors, dated 20 January 2010 reference is made to a.3% NAL p.a., rather than the actual figure of.268%. 12 Counsel for Mr Brooks's primary submission is that the medical panel global determination of 11% wpi cannot be "disaggregated" at all and is fully compensable. Alternatively, he submits that if there is to be any "disaggregation" at all, it should be calculated from the actual monetary compensation amount appropriate for the medical panel's whole person 2 DECISION

4 impairment determination. 13 In the present case, he submits that any deduction from that actual compensation amount should be calculated differently. Based on an 11% wpi figure he says the appropriate compensation figure is $17,880 as at 19 January 2007 (the final date of cessation of employment) being the date or injury pursuant to s.88(4) of the Act. 14 Based on Mr Silverstein's opinion that the 2.8% prior hearing loss was due to gunfire, then the $17,880 amount should be reduced by 2.8%. Alternatively, he submits that if the Commonwealth Act employment was excluded then the $17,880 could be divided by the 41 total years of employment to obtain a yearly average figure of $433 then multiplied by the number of years at Ansett and Ford giving a total compensation payment of $11, Both counsel filed relatively lengthy written submissions and spoke to those submissions as well. I will briefly summarise both counsel's submissions. 16 Plaintiff's counsel primarily submits that because of s.68(4) of the Act the medical panel opinion is final and determinative of hearing loss. He submits that once the medical panel opinion has been provided, the defendant can only exclude deafness for the purposes of calculating compensation for industrial deafness which has occurred in non-compensable circumstances. 17 He says that this is consistent with the dicta of Osborn J in Holden v. Rundle [2011] VSC 663 at [85] that the amount of compensation must be adjusted in accordance with ss.88(1) and (3) providing a basis for the calculation of such adjustment. 18 He submits that the task left for Ford after the medical panel opinion was to merely adjust the monetary compensation figure and not the whole person impairment rating. He says that the whole person impairment rating is solely the province of the medical panel. 3 DECISION

5 19 He also refers to other dicta in Holden at [83] where His Honour discussed the taking into account a prior hearing loss "in determining the amount of compensation payable". 20 He says that Ford has sought to tamper with the medical panel opinion by adjusting the whole person impairment figure and disaggregating it. 21 Thirdly, he submits that ss.88(1) and (3) deal with "industrial deafness" and not impairment and thus the "impairment" cannot be disaggregated. 22 He submits (and the defendant agrees) that it is necessary to look at all relevant Victorian employment hearing loss, whether this occurred prior to or after 1985 (see, ACC v. Fletcher [1990] VR 102 at 111). 23 Applying s.88(4) he submits that all of the 11% wpi attributable to Mr Brooks hearing loss (which is deemed to have occurred on 10 January 2007) is compensable. 24 Alternatively, he says that if the previous hearing loss prior to Ford is deducted by means of applying s.88(3) to the impairment figure, then it should not be determined in this case that hearing loss has occurred at a constant rate over the total number of years of exposure to industrial noise in employment. He refers to Mr Silverstein's opinion that the 2.8% prior hearing loss was due to gunfire. 25 There was some variation in the figures used in Plaintiff s Counsel s oral and written submissions. This does not really matter as on either view he says that his client is entitled to payment of compensation despite any prior hearing loss. 26 Counsel for Ford said that at all material times Ford has not disaggregated the medical panel's finding of 11% wpi. He submitted that Ford merely adjusted the medical panels' determination of 11% permanent partial binaural hearing loss (NAL). 4 DECISION

6 27 He submits that s.88(1) of the Act states that a proportion of hearing loss which has occurred in circumstances which do not create any liability to pay compensation under the Act shall be excluded from the assessment of deafness for the purposes of calculating compensation (emphasis added). 28 He submits that there is nothing in the cited decisions in VWA v. Del Borgo [2004] 9 VR 470, Holden or other cases which refer to the adjustment of the monetary compensation itself as being appropriate. He submits that the methods proposed by Plaintiff s Counsel which allows for non-compensable industrial hearing deafness to be included with the compensable deafness to exceed the threshold in s.91(3)(a) entitling the plaintiff to compensation is contrary to the provisions of the Act. 29 He submits that a medical panel opinion as to total binaural hearing loss does not mean that the plaintiff is automatically entitled to the amount of compensation based on the whole person impairment figure flowing from the medical panel determined NAL permanent partial binaural hearing loss. 30 He submits that this court should determine pursuant to s.88(3) that industrial deafness is deemed to have "occurred at a constant rate within the total number of years of exposure to industrial noise in employment and adjust the binaural loss of hearing determined by the medical panel accordingly. 31 Substantially, I am in agreement with the defendant's determination as to no compensation being payable for Mr Brooks's hearing loss as the relevant final binaural loss of hearing is below the 10%, and thus the deemed impairment is zero (see s.91(3)(a)). The whole scheme of s.98c impairment benefits is that there should be a work related 10% wpi threshold (save for musculo-skeletal modified whole person impairments) before any compensation is payable pursuant to s.98c. 32 Both Counsel agreed that the scheme of the Act for hearing loss is that total hearing loss resulting from both pre- and post-september 1985 relevant 5 DECISION

7 Victorian employment is compensable under the Act (see, ACC v. Fletcher [1990] VR 102 and s.90(3) of the Act). 33 I do not accept the plaintiff's submission that the effect of s.88(4) based on the Fletcher decision is that all the determined global whole person impairment figure is deemed to have occurred on the last date of relevant employment, regardless of whether some or most of it was due to non-relevant Victorian employment. The Supreme Court in the Fletcher decision was referring to work related hearing loss only, both pre- and post-september 1985, in its decision. Further, such a submission seems to me to be contrary to s.88(1) of the Act excluding non-related hearing loss as well. 34 Both counsel agreed that it is not the actual medical panel determination of whole person impairment which can be "disaggregated" in this case. 35 The Act was amended by Act No.80 of 2010 which inserted a new s.91(3aaa) allowing non-compensable impairment from individual deafness to be excluded. 36 Neither Counsel submitted that that later provision is relevant in this case as the date of injury and date of submission of the s98c claim pre-dated the enactment of that provision. 37 Plaintiff's Counsel quite rightly submits that a.68(4) of the Act mandates that any Opinion of the medical panel must be adopted and applied by the parties, and indeed this court. However, it is only binding insofar as to what it actually determines. 38 The medical panel did not determine a work-related impairment per se, merely the overall or global binaural hearing loss and consequential whole person impairment according to the Act. As the plaintiff's counsel concedes in his submissions, it was never asked to apportion the impairment between work related hearing loss and non-work related hearing loss and did not do so 6 DECISION

8 according to the Opinion itself anyway. 39 Having regard to the inconsistencies between individual audiometry tests, and even CERA tests, performed on the one person, it is understandable that a total or global hearing loss figure should be determined by a medical panel. That does not mean that figure is determinative of work-related hearing loss (see, the Del Borgo decision at [82]). 40 The impairment flowing from a work related injury cannot be challenged by any court or tribunal (see, s.104b(12)(a).) The medical determination of 11% permanent partial binaural loss of hearing (equating to an 11% wpi) gives a base figure from which any "industrial deafness... which has occurred in circumstances which do not create any liability to pay compensation" can be excluded (see, s.88(1)). 41 Having found that the medical panel's total or global assessment is not automatically determinative of compensable loss or impairment, it is now necessary to consider whether any and if so what, deduction should be made from that medical panel assessment. 42 Both parties agree that the present s.91(3aaa) is not relevant in this case. Interestingly, that provision appears on its face to conflict with s.68(4) of the Act. That issue may have to be resolved in another case on another day. In any event, s 91(3AAA) appears to reinforce parliament's intention to exclude non-victorian employment related hearing loss from compensability. 43 Counsel for Ford submits that any allowance for non-victorian employment industrial deafness should be set off against the medical panel assessment of NAL binaural hearing loss, referring to the express provision in s.88(1) as well as s.90(1) and (2). 44 To my mind, ss.90(1) and (2) are not "misplaced" as submitted in the plaintiff's submissions in reply. At the end of the day, this court needs to determine the 7 DECISION

9 percentage proportion of the worker's hearing in respect of hearing loss "in relation to which the amount of compensation is assessed". 45 The plaintiff's submissions are silent as to s.90(2). As stated, the plaintiff's primary submission that it is only the monetary amount of compensation which is to be disaggregated. This then begs the question as to what the determination should be for industrial hearing loss pursuant to s.90(2) as set out in the Act. 46 Perhaps the most telling point against the plaintiff's argument is that it is only the amount of the monetary compensation which is to be disaggregated then a worker with a total 11% binaural loss of hearing of which 10% is due to nonemployment causes should receive some compensation. However, a worker with a 9% binaural loss of hearing, all of which is due to work related noise, would not get anything. To my mind, Plaintiff s submission ignores the clear threshold in s.91(3)(a) of the Act taken with the specific provision in s.88(1) of the Act. 47 I agree with the defendant that this court should be wary of reading too much in to the Del Borgo decision in this case. That case was only concerned with "further loss of hearing" rather than any issue of exclusion of non-work related hearing loss. 48 Further, Osborn J. in the Holden case discussed adjusting the "amount of compensation" in s.88(1). I do not think he should be seen as endorsing the plaintiff's approach to disaggregation of the monetary compensation alone. In referring to s.88(1), I believe he was talking in a wider sense as to compensation, and not purely endorsing the adjustment of only the monetary amount of compensation. 49 It is the proportion of non-victorian employment related industrial deafness which is excluded from the assessment of deafness for the purposes of calculating compensation in s.88(1). It is not excluded from the monetary 8 DECISION

10 compensation amount per se as submitted by Counsel. 50 It then remains to determine if any, and if so what, disaggregation should be made from the agreed medical panel finding of NAL 11% permanent partial binaural loss of hearing, allowing for presbycusis. 51 Both Mr Silverstein and Mr Millar, had access to the pre-ford employment audiometry test on 13 October 1989 showing a 2.8% previous loss. Both agreed that on the basis of this test that there was some minimum loss of hearing due to noise. However, Mr Silverstein thought that the high tone hearing loss was consistent with gunfire or rifle use, but not due to noise exposure with prior employers. He also relied on Mr Brooks's history of prior limited noise exposure. 52 Mr Millar thought that the 1989 audiometry test did show high frequency loss in the left ear which could be equally due to firearm exposure at Army training or to acoustic trauma from the prior employment. He points out that the 1989 test was a pre-employment test at Ford which had obvious limitations. The frequencies were limited and there was a lack of bone conduction records. I also add that there was nothing to indicate the qualification of the tester or the circumstances or environment under which it was taken. Mr Silverstein makes no comment in this regard as to the reliability of the 1989 audiogram. 53 I do not believe that the 1989, or indeed the other employment audiograms, should be considered to the same degree as those audiograms arranged by Mr Silverstein and Mr Millar. Even if the prior 2.8% hearing loss audiogram was a valid one, then it does not assist Mr Brooks if the prior hearing loss was due to gun or rifle fire. This would have to be deducted from the 11% binaural hearing loss leaving a work related permanent partial binaural loss of 8.2%. (i.e. 11% minus 2.8%). This would then mean that the whole person impairment would be zero and no compensation would be payable anyway pursuant to s.91(3)(a). 9 DECISION

11 54 In his report, Mr Millar states that there was a "lifetime of employment in noise as a maintenance fitter and turner including Ford". I have already noted Mr Silverstein's history of "mild" and "moderate noise" in prior employment. He took a history of some ear protection in early employments together with, "noisy" employment with the Federal Airports Corporation in which ear protection was "offered". 55 The default provision in s88(3) is that industrial deafness is deemed to have occurred at a constant rate within the total years of exposure to industrial noise in employment. I note the provision only refers to "exposure to industrial noise in employment" rather than any specific degree of noise (see, Simiele v Redmond [2008] VCC 1463). Of course, the provision does allow this court to determine otherwise. 56 Based on the material before me I do not otherwise determine as to industrial deafness. There is a clear history of noise exposure in all of his previous employments. I do not see that I should place much relevance on the use of the words "mild" or "moderate" or the use of "some" or "offered" ear protection as set out in Mr Silverstein's history. On any view of his histories, Mr Brooks has a long history of exposure to noise in employment, both covered by Victorian workers compensation legislation and otherwise. 57 Put simply, he had 10 years of employment involving industrial noise exposure at Ansett, 12 years with the Department of Defence and 17 years at Ford, giving a total of 39 years of relevant work employment. Dividing the 27 years of Victorian relevant employment by the total of 39 years and multiplying it by the medical panel NAL 11% permanent partial binaural loss of hearing, gives a total of 6.2% relevant work related permanent partial binaural loss of hearing. This is well below the 10% threshold required by s.91(3)(a) and results in zero impairment. 58 This figure disregards any hearing loss caused by gunfire or employment 10 DECISION

12 under the Commonwealth Act. If I was to take into account any hearing loss due to gunfire (which the defendant does not submit should be done), then this would reduce the permanent partial percentage figure even further. 59 In the circumstances, these proceedings are dismissed DECISION